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Friday, September 23, 2005

Paul Horowitz puts forward an interesting question regarding Justice Scalia's views on governmental restrictions on speech that it is funding.

Scalia first made his views on the subject known in National Endowment for the Arts v. Finley (524 U.S. 569 (1998)). In that case, Scalia [EDIT: concurred in holding that making "decency" a consideration in the awarding of NEA grants did not violate the first amendment. He argued further that the NEA could engage] in content discrimination when giving out it's grants. He wryly noted that were the NEA's actions upheld, "Avant-garde artistes such as respondents [would] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it." He continued then to argue that it is absurd to equate a lack of taxpayer subsidization with an effort to suppress unpopular ideas. And he specifically claimed that "The nub of the difference between me and the Court is that I regard the distinction between 'abridging speech' and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable....The government, I think, may allocate both competitive and noncompetitive funding ad libitum, insofar as the First Amendment is concerned."

Horowtiz thus inquires:

What relevance should this position have for Justice Scalia in cases involving public funding of religious programs, or public funding of non-religious activities carried out by religious groups? Does this suggest Justice Scalia believes it is constitutional to impose conditions on such groups -- for instance, that no money flowing to such a group be spent on anything that may contain religious content, or that a religious group receiving government funds may engage in x religious speech but not y religious speech? This is not a gotcha post; commenters are welcome to discuss the ways in which Justice Scalia is or is not consistent in his views on this point. But I think it's an interesting subject for musing and discussion.

What with the controversy over President Bush's "faith-based initiatives" and the desire amongst some to make sure these funds only are distributed to groups that meet certain non-merit-based requirements (not discriminating against homosexuals, for example), this is an issue that will eventually come up. So what's the end result?

It's not an exact fit, but the closest case we have in explicating Scalia's views is the recent case of Locke v. Davey. There, the Supreme Court upheld a Washington law in which college scholarships could not be used by students studying theology or other religious vocational training. The Court specifically allowed the possibility that Washington could, if it wished, grant the scholarships (in other words, the discrimination was not constitutionally compelled), however, it said that Washington was equally free not to. Since the decision was discretionary, I think it is safe to say that Washington made its decision based on some presumably distasteful or negative quality of theological training (either that funding it breaches the separation between Church and State, or that theological training is not something the state wishes to foster, or some other reason--it really doesn't matter what).

Scalia dissented quite forcefully from this decision. He argued that

When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.

In other words, he was not very much swayed by his previous argument in Finley--that nobody is being stopped from pursuing theological training, they are just deprived of the pleasure of having the secular state subsidize it as well.

Perhaps the analogy might best be understood with regard to Lee v. Weisman. If Locke represented the state privileging a secular viewpoint without providing an equivalent for (but not prohibiting the private expression of) a religious choice, then Lee represents the reverse--the state privileging a religious viewpoint (in this case a graduation prayer) without providing an equivalent secular choice (but not prohibiting the private expression of secularity, by letting the student either stay home from graduation or not join in the prayer). In Lee, the Court held this dualism to be unconstitutional--persons of dissident religions should not be put in a "participate or protest" dilemma, and that it is unfair to effectively kick them out of public activities if they do not adhere to the dominant religious sensibilities. It would be absurd to respond that the dissident student could have her own, private graduation with her own prayers (or lack thereof) and that this would make the First Amendment problem just go away. Instead, it is sufficient to note that the state cannot publicly put religion and non-religion (or majority religion and minority religion) on unequal terms--it must either provide equal opportunity to all, or abstain from the endeavor entirely.

This would mesh very well with what Scalia is saying in Locke--but for the fact that he dissented vigorously in Lee. In Lee he proclaimed the long standing tradition of religious prayers (it should be noted that the Locke statute was in accordance to a long standing provision of the state constitution) and derided the notion that participation the religious portion of the ceremony in any way coerced their assent to religious dogma. This is merely "respect for religion" that the government is perfectly permitted to foster in the public sphere--the student, as noted above, is still perfectly free to believe what he wants in private. Why then cannot the state ask its citizens to be secular in public and in public funding (in accordance with its popular mandate), and abide by whatever religious sensibilities it has in private? It seems that Scalia cannot make sense of his Locke argument given his sweeping dismissal of the logical vein in Lee (one other argument Scalia might use, that religious views gain higher protection than "mere" speech also falters via Lee--Scalia specifically labels the two equivalent: "The government can, of course, no more coerce political orthodoxy than religious orthodoxy.").

I should note that I agree with Scalia when it comes to Locke--I think it was wrongly decided and that it represents state-sponsored discrimination against religion. But that's because I take the broader view of what state-sponsorship means--the view that Scalia rejected for both free speech (Finley) and freedom of religion (Lee) cases. I do not think that Scalia is being consistent here, nor do I think he even realizes he's being inconsistent. But Scalia's religion clause jurisprudence has always been--ironically, since he is one of the loudest critics of this supposed ailment in our legal tradition--among the most incoherent and non-cohesive on the Court.

That, as Mr. Sun points out, is the real tragedy, that the cover-up worked exactly as planned. The Archdiocese is claiming vindication despite clearly getting off on a technicality, and nobody will be punished for their part in this display of raw evil. As Cardozo Law Professor Marci Hamilton put it:

Let's put the technicality of the statute of limitations aside, and look at the substance of the report. It is unequivocal. On the merits, but for the statute of limitations, the dozens of priest perpetrators, who were placed in one parish after another, were guilty of rape, statutory sexual assault, involuntary deviate sexual intercourse, indecent assault, endangering welfare of children, and corruption of minors. The tragedy is that victims need such a long period of time to come forward and none had the capacity to come before the grand jury within the statute of limitations. It is still everyone's hope involved in this investigation that those who were more recently abused will be able to stop the cycle of abuse and come forward now.

Mr. Sun wants as many bloggers to link Cardinal Bevilacqua's name to "evil" so that his escape from justice does not bring an escape from notice. Lady Penelope and Uncle Willy have already done so--we need to bump that number up.

What makes this all the more twisted is that what seems to be literally the only response from the Church hierarchy is not to crack down on pedophiles and those who abetted them, but a crackdown on homosexuals as such. The new rules coming out of the Vatican are expected to ban ordination of any homosexual person--celibate or not. They will now be considered, as a class and as persons irrespective of conduct, fundamentally unfit for the priesthood. Andrew Sullivan is justifiably outraged--and I am done making excuses for Pope Benedict XVI. This is simply appalling. I once asked a conservative Catholic friend of mine what gay and lesbians should do--how can they be full and functioning members of the Church community. He responded that they should suppress that part of themselves. Obviously, I don't find that answer satisfactory. But now even that position has been kicked out the door. Now even homosexuals willing to be celibate--willing, in other words, to never commit a homosexual act--are still closed off from full equality in the Catholic Church. They are deemed, in Mr. Sullivan's words, Untermenschen. And of course, it goes without saying that the implication that homosexuals are the root of the pedophilia problem, a claim utterly unsubstantiated in reality and being used to insure the real perpetrators go unpunished, is a morally unconscionable.

What's most distressing about this is that I truly believe these actions do not come close to the true beliefs of most Catholics. I have many Catholic friends, some liberal, some conservative. All of them are good-hearted persons with genuine respect for their fellow human beings, regardless of orientation. A few bad apples shouldn't discredit their whole faith. But what do you do when the bad apples are Cardinals and the Pope himself?

What I want is for men to have the real opportunity to be child rearers in our society. This means that if I had the choice between expanding maternity leave for mothers and acquiring paternity leave for fathers who are not full time caretakers, I'd vote for the fathers.

It means that if I had a choice between reducing stigma for women who take years off to rear children, and reducing the stigma for men to take time off at all to rear children, I'd vote for the men. Of course most women will opt to take time off to take care of kids; the option to take time off is rarely available to the man, if he has a wife that appears to be functional. It's not always actually available, and even if policies dictate otherwise, it's rarely socially available.

So really, I want men to have the same opportunities as women.

Now, as regular readers know, I want to be a law professor. An event which (tragically, perhaps) first requires me to attend law school. Knowing my social skills, if I end up meeting someone whom I feel enough for to get married, it will probably be there. And since the odds of finding another future law professor seems astronomical, I can very easily see myself marrying what one of my Georgetown friends lovingly refers to as (and aspires to become) "a corporate whore." In which case, I'd probably be the guy staying at home--that guy who would benefit from what Ms. Bond is talking about. So yeah, it'd be nice.

So, is there stigma? Well, I don't really know, since for me it's still all speculative at this point. I've told a few people (mostly female) that I'd be willing to be a stay-at-home dad with no ill results. But still, there is that expectation of being the big macho breadwinner (and we all know how macho law professors are seen in today's society). Furthermore, a law professor is a job that probably would be effected least by taking some time off or reduced time to raise children (most schools now, or so I hear, will delay tenure review in these cases). But writing and researching is something I can do from home (I may be underestimating the distracting powers of stopping a two year old from choking to death on a grape). Finally, I'll admit some degree of semi-sleazy quid pro quo at work here--I'm willing to be a stay-at-home dad because in doing so I'll have the opportunity to be a professor and still get all the financial perks of being a lawyer. If, by some miracle of societal intervention, I met someone who wasn't going to be a lawyer (or some similarly high-power hyper-job) I might re-evaluate my stance. In other words, I'm willing to be the primary care-giver, but I don't necessarily desire it. Does that make me a bad person? Probably. But if I was a good person, I wouldn't want to attend law school at all, now would I?

UCLA Law Professor Devon Carbado has written a very interesting post exploring the link between racism and heterosexism in the lives of gay blacks. He gives a number of statistics, but the one that really caught my eye was this one:

Black partners in same- and different-sex couples have similar and higher rates of military service (21% and 22% respectively ) than individuals of other races in same-sex (13%) and different-sex (15%) couples.

The higher proportion of blacks in the military compared to whites is well known, but I did not realize it extended to homosexual couples as well. What does this mean?

Well first, the 21% figure also should raise eyebrows because it shows that the "problem" of gays in the military is not isolated. Many homosexuals have served; undoubtedly many more would gladly volunteer if the terms of service didn't include official self-marginalization.

But there is a second problem more intimately connected to the economic realities gay blacks live in. I'm not an expert on DADT, but I assume that gay couples can't get the same type of benefits that accrue from military service as do straight couples. This includes both monetary benefits as well as social support groups. Coupled with the disparity in incomes between black and white homosexual couples, and this becomes very distressing. Carbado quotes statistics saying that black homosexual couples make, on average, a little over $60,000/year, while other same-sex couples earn just over $90,000/year. In other words, gay blacks serve more and need the benefits that come with service more, but don't get them because of discriminatory military policy. DADT isn't the only offender here--any military policy which seeks to cut, defer, or otherwise reduce benefits harms blacks disproportionately because blacks serve disproportionately. But gay blacks are particularly vulnerable because of there twice-removed state of oppression--they are even less sympathetic victims than gay whites or straight blacks, since the observer (or would-be supporter) has to both transcend racism and homophobia to relate. Even amongst "natural" allies, this can be a problem (racism in the homosexual community, or heterosexism in the black community, for example). So a policy whose main victims are not just gays and not just blacks, but gay blacks, is likely to avoid any groundswell of opposition, and will also slide to the backburner of black and gay rights organizations (if it hits the radar screen at all).

I try to fly JetBlue as often as possible, so obviously the report of a plane which had to make an emergency landing at LAX due to a landing gear failure was a bit distressing (I'm also a JetBlue stockholder, so that was a bit distressing too). I certainly am having some nasty little flashbacks of how my family always used to fly ValueJet--another low cost airline which went out of business because, well, because its planes had a disturbing habit of dropping out of the sky. But, as tragedy seems to have been averted, I now wonder how we should view the Blue in its wake?

As far as I can gather from the reports, the crew was as professional and adept as could be expected in the situation. Sure, leaving the satellite TV feed on so the passangers could watch their own drama live might not have been the best choice in retrospect. But aside from that, the pilot got the plane on the ground, the crew in the air instructed the passengers to do the things necessary for their own safety, the crew on the ground got the plane down as quickly as possible (no bureaucratic snafus here), and the emergency workers were on the ready as soon as the plane landed. JetBlue immediately promised an inquiry, while at the same time noting that the planes they use--Airbus A320s--are designed so they can land with precisely this sort of failure. So it seems they took and are taking all the right steps.

Obviously, man is somewhat of an irrational beast, so for many this will mean they will never fly JetBlue again. However, from a human perspective (as well as a business perspective--they seem to overlap here), I think we couldn't ask for much more out of JetBlue. Of course, all that assumes that nothing untoward comes out of the inquiry.

Wednesday, September 21, 2005

I was tooling around the new blog Black Prof (you'll note it's now on my blogroll) and I stumbled across a very neat article by one of the contributors, GW Law Professor Paul Butler: Much Respect: Toward a Hip-Hop Theory of Punishment, 56 STAN. L. REV. 983 (2004). Don't let the name fool you--it's a serious and readable article that has some tremendous insights on how we ought to think about the criminal justice system. However, I knew it would be fun to read when I saw the introductory footnote:

Professor of Law, The George Washington University Law School. This Article was presented as a work-in-progress at Washington University School of Law and at a Stanford Law Review Symposium. I thank the participants in those events. Special shout out to Daniel Solove. Mad props to Christopher Bracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my research assistants Jeremy Medovoy, Michael Robinett, and Eduardo Rodriguez.

When's the last time you've seen that in the Stanford Law Review (or, for that matter, the first epigraph being from Nas)?

I do have "much respect," though, for the thesis of the article. It argues that:

Every society has seen the need to punish. The hip-hop nation is no different. Three core principles inform its ideas about punishment. First, people who harm others should be harmed in return. Second, criminals are human beings who deserve respect and love. Third, communities can be destroyed by both crime and punishment. (at 999)

Butler notes that the hip-hop community does not claim that wrongdoers should not be punished--there are plenty of verses promising retribution for harming the community. What is present, and missing from current discourse, is the concept of "respect"--that criminals too are human beings and should not be seen as mere statistics or indicators of how we've gotten "tough on crime." Especially when a massive proportion of blacks in prison are there for non-violent drug crimes (and come from regions where drug dealing is one of the few economic options open), this is a concept that needs to be taken seriously. The final prong of the analysis--impact on the community--also is critical. When a criminal justice scheme is constructed so that virtually all young black men are locked away in jail, we have to start wondering if the societal benefits of the system are not outweighed by the harms. To put it another way, while it certainly is true that drug addiction is a serious problem in poor black communities and one that is a significant barrier to overcoming poverty, that problem pales in comparison to the barrier posed when the entire black male population of the town is in prison on crack possession charges.

Monday, September 19, 2005

Kevin Drum has a full plate of bad news blog posts--but he's not the only one.

#1: The Abramoff/GOP corruption scandal nets yet another Bush staffer. Like all other stories focusing on corruption in the Republican party, this one too will have the life span of a Mosquito in December.

#3: In related news, Drum argues, contra Shakespeare's Sister, that Americans of all stripes (not just the hardened ideologues) love to hear disingenuous rhetoric--it just has to be in disguise. It's true--I just melt whenever I hear someone telling me about genuine interparty dialogue--even if I know perfectly well that man is a back-stabbing partisan hack (I'm looking at you, Tom "crossword puzzle" Coburn).

#5: The Bush war on expertise continues as, among other things, noted disaster maven Karl Rove is put in charge of Katrina reconstruction. I will admit though, when I think Karl Rove, "disaster" is one of the first words that springs to mind. Though, I have to ask, isn't Rove usually more on the supply-side of catastrophic events?

#6: On the incompetence ledger, the federal response to Katrina continues to top itself. Forcing a doctor to leave a dying patient because he didn't have specific credentials from FEMA to operate there? See, this is why I can't just become happily jaded and cynical--there's always another level of idiocy I haven't fathomed yet.

Sunday, September 18, 2005

Most Human Rights Actions taken by the UN:1) Israel-- 2742) Sudan-- 122 3) Democratic Republic of the Congo-- 1204) United States of America-- 915) Myanmar-- 90

Israel as #1 will surprise precisely nobody (but is still appalling), and the US clocks in ahead of such luminaries as Syria, Iran, Cuba, China, North Korea--well, basically every country that isn't either a) Jewish or b) in the midst of a multi-million death genocide.

So if we elect Joe Lieberman as President and start killing all our minorities, we should soar to number one in no time!

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